Week 47 (2017)

Week of November 20, 2017 through November 24, 2017

Arlean Brown v. Brian Elliot (Motz 11/21/2017): The Fourth Circuit held a sheriff’s deputy is entitled to qualified immunity for shooting and killing a man during a stop when the man begins to drive his vehicle with the officer partially in the vehicle. The court, however, couched its decision on the fact that the officer’s choice to shoot the man did not clearly establish a Fourth Amendment violation. The court likewise upheld a grant of discovery sanctions where the prosecution claimed there were no video cameras involved in the incident, when one car did have a dash camera that could not record. The court, therefore, affirmed the judgment of the district court on all matters appealed. Full Opinion

International Refugee Assistance Project v. Donald J. Trump (per curiam 11/17/2017): The Fourth Circuit held that a challenge to a Presidential Executive Order, which expires by its own terms during the course of litigation, must be dismissed as moot. The court dismissed as moot the plaintiff’s challenge to President Donald J. Trump’s Executive Order No. 13,780, which banned the entry of nationals from several middle eastern countries for 90 days. The court did so on instruction from the Supreme Court. Full Opinion

US v. Mohsin Raza (King 11/20/2017): The Fourth Circuit held a district court does not commit reversible error when it instructs a jury that a finding of guilt with regard to one party does not mean all parties are guilty and when it says the jury has to find the defendants acted “knowingly and with intention . . . to deceive or to cheat” instead of saying “to deceive and to cheat.” (Emphasis added). Likewise, the court held the prosecution sufficiently proved that the defendants’ lying on loan applications had a material effect on the bank’s lending decisions. The court, therefore, affirmed the judgment of the district court on all matters appealed. Full Opinion

William Cox v. Duke Energy (Niemeyer 11/20/2017): The Fourth Circuit held a person who waives his right to pursue a civil action against those who arrests him in exchange for no criminal liability for alleged misconduct is barred from pursuing any such civil action. A man who was allegedly, but likely, improperly arrested for flying his glider plane close to a nuclear facility had voluntarily waived his rights to pursue a civil action against those who arrested him in exchange for no criminal liability, and the court upheld his agreement. The court’s decision relied heavily on the fact that the man was represented by counsel, had adequate time to consider his options, and had not been given misinformation. The court, therefore, affirmed the district court’s grant of summary judgment in favor of the defendants. Full Opinion

Highlight Case

The Fourth Circuit held that a challenge to a Presidential Executive Order, which expires by its own terms during the course of litigation, must be dismissed as moot. The court dismissed its previous decision to uphold a challenge to President Donald J. Trump’s Executive Order No. 13,780, 857 F.3d 554, as moot on instruction by the Supreme Court. The court noted that the Supreme Court, which did not address the merits of the decision, found the challenged provision had “expired by its own terms.” Accordingly, the Fourth Circuit dismissed the challenge to the Executive Order.

On January 27, 2017, President Donald J. Trump signed an executive order (“EO-1”) that banned the entry of persons from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for ninety days. EO-1 also suspended the United States Refugee Admissions Program for 120 days and reduced the number of refugees who would be eligible for admission in the 2017 fiscal year. Promptly thereafter, EO-1 was challenged in court, and a federal district court granted a temporary restraining order, which mooted several key provisions in EO-1. EO-1 was likewise successfully challenged in the federal court of appeals. The government then decided to withdraw EO-1 and issued a second Executive Order (“EO-2”). EO-2 was the subject of this case.

EO-2 was signed on March 6, 2017 with an effective date of March 16, 2017. The order essentially sought review by the Secretary of Homeland Security of every nation’s ability to provide information about its citizens when they apply for a visa to the United States. Any deficient nation would then have fifty days to come into compliance. EO-2 also issued a blanket 90-day ban of entry by any person from Iran, Libya, Somalia, Sudan, Syria, and Yemen, and it banned entry by refugees for 120 days.

EO-2 was challenged simultaneously in a Hawaii district court and in a northern Maryland district court on the grounds that it violated the First Amendment for being motivated by disdain towards Islam and that it violated the Immigration and Nationality Act. Both district courts promptly issued preliminary injunctions preventing enforcement of the ban against nationals from the six listed countries and preventing enforcement of the ban on refugees. The government appealed the Maryland district court’s injunction to the Court of Appeals for the Fourth Circuit which, sitting en banc, issued an order that upheld most of the district court’s injunction. The government then appealed to the Supreme Court. The Court heard an appeal from the Hawaii injunction first and stayed that order in part, essentially allowing the travel ban to continue, but preventing its enforcement against persons with familial or business relationships with people or organizations in the United States. The Court later granted certiorari on the government’s appeal from the Fourth Circuit, which dealt with the enforcement of the blanket ban of persons from the six listed countries. However, because the ninety days of the ban had expired, the Court found the appeal moot. The Court instructed the Fourth Circuit to dismiss its previous opinion as moot.

Accordingly, the Fourth Circuit, still sitting en banc, dismissed the challenge to the executive order as moot. Judges Niemeyer, Shed, and Agee joined, concurring in part and dissenting in part. They argued the Fourth Circuit should also vacate the circuit court’s order, which would prevent it from having any legal consequences.